The Supreme Court decided in Padilla v. Kentucky that noncitizens in criminal proceedings have a Sixth Amendment right to advice on the immigration consequences of a guilty plea. Despite the promise of Padilla, many noncitizens with unconstitutional criminal convictions find themselves without a remedy. Discovering the adverse immigration consequences of their convictions only once they face removal in federal immigration proceedings, noncitizens are faced with strict temporal and custodial requirements that foreclose state avenues for Padilla relief. While the states can partially alleviate the ineffective assistance of Padilla by creating new criminal procedural rules to raise Padilla claims in state forums, a uniform federal solution is needed. Federal courts should interpret the definition of “conviction” under the INA to exclude convictions entered without effective crimmigration counsel. Congress did not intend for convictions entered without procedural safeguards guaranteed by the Constitution to make noncitizens removable. Furthermore, immigration judges can use their expertise in immigration law to the advantage of all parties by hearing Padilla claims in a federal forum. Sharing the burden of redressing Padilla violations between the federal and state forums will ultimately improve the implementation of crimmigration counsel and remedy the current ineffective assistance of Padilla.
Volume 167 Issue 2 2019 Comment